In order to garnish a debtor's wages in Arizona, the debt must be reduced to a judgment. Unlike, garnishment of non-earnings, Arizona law prohibits a pre-judgment remedy of wage garnishment. Many debtors make the mistake of not contesting the lawsuits filed by creditors and, therefore, allow creditors to obtain a default judgment. Often, the debts may not be valid, may be the wrong amount or may be barred by the statute of limitations. The Court has no way of knowing this unless the debtor, or debtor's attorney, files a response and contests the allegations in the complaint. Failing to assert these defenses prior to the issuance of a default judgment makes it very difficult to stop the garnishment process later.
THE WRIT OF GARNISHMENT
Once a creditor has obtained a judgment and recorded it at the courthouse, the creditor can apply to the clerk for a Writ of Garnishment. The Application For Writ Of Garnishment (Earnings) is a form that can be obtained from the clerk's office at any courthouse or on some court websites. On the Application the Creditor lists the name, address of and phone number for the Creditor, the Debtor and the Garnishee (employer). The Creditor must also list the amount of the judgment and the total amount currently owed, including any interest and allowable costs. The Creditor then attaches a completed Summons and Writ of Garnishment and takes the Application to the clerk who will provide a Case Number and issue the Writ and Summons.
SERVING THE WRIT ON THE GARNISHEE
Once the Writ and Summons is obtained from the clerk's office, the Creditor must then serve these and several other documents on the employer,(called the Garnishee). Service must be accomplished in the same manner as serving process to commence a lawsuit. In most instances a process server is used and the costs are added to the garnishment. The Creditor must serve the employer two copies of the Summons and Writ of Garnishment, a copy of the underlying judgment, four copies of the Garnishee's Answer form, two copies of the Second Notice To Judgment Debtor of Garnishment, two copies of the Second Hearing Request and Notice of Hearing on Garnishment, two copies of the Instructions to garnishee and four copies of the Garnishee's Nonexempt Earnings Statement. Within three days after serving the Garnishee, The Creditor must deliver to the Debtor a copy of the Writ of Garnishment, the First Notice to Judgment Debtor of Garnishment and the First Hearing Request and Notice of Hearing on Garni
ORDER OF CONTINUING LIEN
Within ten days of being served, the employer must answer under oath and declare whether or not the Debtor is employed there and will be owed any wages within the next sixty days. The employer also must state when the Debtor's next two paydays will be and the pay period covered. The employer may also request an answer fee. If the employer answers that money is available for withholding, the Creditor must complete an Order of Continuing Lien and send one to the Judge and one to the Debtor. When the Judge signs the Order, a copy is mailed to the employer and the money is released to the Creditor.
THE CREDITOR'S REPORT AND RELEASE
After the Garnishment has begun, the Creditor is required to prepare a Creditor's Garnishment Report and send it to both the employer and the Debtor within twenty-one days after the end of each calendar quarter, when the balance reaches less than double the amount of nonexempt earnings received for the past two pay periods, and within twenty-one days after the balance is reduced to $500 or less and then before the 10th of each month thereafter as long as the Order of Continuing Lien is in effect. After the garnishment is complete, the Creditor must complete and file with the court one copy of the Release of Garnishment. Copies need to be sent to the employer, the Debtor and any other creditor who has asked to be notified.
LIMITATIONS ON WAGE GARNISHMENT IN ARIZONA
There are several important limitations on the garnishment of earnings under Arizona law. First, only "non-exempt" earnings are subject to garnishment. Exempt earnings are determined in accordance with state and federal law and include such things as Social Security payments, child support, etc. A Creditor may only garnish the lesser of 25% of a Debtor's non-exempt disposable earnings or the amount of weekly earnings that exceed thirty times the hourly minimum wage (currently $7.25 p/hour).
Additional resources provided by the author
Forms are available free of charge from any Superior Court or Justice Court in Arizona. Arizona law governing garnishment of earnings can be found at A.R.S. § 12-1598. Federal law can be found in the Consumer Credit Protection Act at 15 U.S.C. §§ 1671-1677.